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tv   Today in Washington  CSPAN  December 23, 2011 2:00am-6:00am EST

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down in detail which people will not understand. just a number of points i would like to bring out. the first is the hidden camera which is on the lapel. had she been given any instructions by the "news of the world"? >> well she was because they had to rehearse to show her how to fit it and how to work it. this rehearsal was actually recorded on the tape. i don't think they knew this, and at the beginning of the tape, when you are getting to do the -- get him to stand back about three meters or you get it all in the shot. and it was quite clear to me that when i saw this, that feldt
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was trying to shut the whole thing down from the beginning. she of course never mentioned anything to do with nazis. everyone would have been horrified. particularly the german -- because being a modern german person she would have been horrified. it is absolutely clearly there. >> and to be clear about it, you obtained a copy of the video which is part and parcel of the disclosure in the civil proceedings? >> indeed. >> than the second and you have party already dealt with this mr. mosley it, is paragraph 33 and this was the second article on the sixth of april, the follow-up article.
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you were offered some more money, 8000 pounds you told us. so we understand it in sequence what was the significance of this point? what were you driving at here? >> well to me it is that they wanted a follow-up article because i had said this was untrue. they wanted to really put the boudin, so they wrote this article purporting to be by the lady, and completely composed myself. i went back and rewrote parts of it and then during the trial, they were saying that this was the result of numerous telephone conversations, which i don't pick anybody really believes. not surprising i don't think the conversation ever took place. he simply invented the entire article. >> m. paragraph 34 and 35 explain that within the "news of the world," the story was very
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tightly kept. in other words very limited number of people because the risk of leaks would obviously cause a consequent risk that you might take the proceedings to injunction. is that right? >> that's right. i think they realize publishing this article was completely illegal and therefore if i found out about it and went to a judge it would be stopped but knowing, therefore knowing it was illegal they took a number of courses including this booth as mentioned earlier to make sure that nobody in my camp as it were would find out. >> in the last evidential point i would like to deal with, and this is quite a detailed.under the heading blackmail. and it does relate to mr. --
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could you tell us about this in your own words? maybe we can start with an e-mail which was sent from the second of april, 2008, three or four days after the publication of the first article. the e-mail reads, i hope you are well. ..
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>> will you comment on that, but before you do, paragraph 37 of your witness statement, and just about to send you a series of pictures to perform the basic of this article this week and reveal of the identities of the girls involved because it's the only follow-up to the story. our preferred story, however, would be you speaking directly with your dealings with max, and we'd be grateful and return you full anonymity, pixelate jr. faces and have a sum of money for you putting you in the driver's seat giving you control and preserving your an anyone times, and your names will not be used. do not hesitate to e-mail me with the thoughts, and there was an offer of money. anybody reading that, and this
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was just the conclusion could think this was close; is that fair, mr. mosley? >> i think so. what they said in the last e-mail is if you don't cooperate, we'll publish your pictures unpixelated, but if you do, weave -- we'll give you 8,000 pounds. it was terrifying for the girls if their families would find out of their work. three had significant positions. one was a very serious scientist. another one had a major position in health care. another was running an office, and only one of them fairly anonymous, and they were all at risk, and this being published in news of the world was
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terrified them. the only admirable thing is they did not succumb to it. >> thank you. now, i'm not going to deal with the trial itself, but the justice of mrs. eddy and try to navigate my way through it to understand the findings and reasoning because the reasoning is important in terms of article 8. now, in our bundle, the judgment starts, sir, internal number 14, and it is a lengthy judgment. let me try -- >> certainly a judgment that repays reading in full. >> yeah. >> yes.
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>> mr. justice eddy, having set the sign in paragraph 44 on the little internal numbers page 24, considers the factual question was there -- [inaudible] and his conclusion was there was not, although his conclusion comes as a slightly later point in the judgment. paragraph 79, this is page 31, the justice deals with the blackmail allegation. he's absolutely clear about it, mr. mosley, paragraph 22 on page 32. the justice says this appears to
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contain a clear threat to the women involved unless they cooperate, their identities would be revealed. there was then cross-examination on this issue, paragraph 85. he accepted the e-mails could be interpreted as a threat, and the justice's observation in relation to mr. miler, the end of paragraph 85 just seems to fall short of the endorsement of the reporter's behavior. >> a wonderful way of understatement. >> yeah. >> well, it's the witness, mr. miler, works out the cross- examiner is talking about plaque
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mail, and -- blackmail, and doesn't think it is, but it could be interpreted as a threat, and i accept that. i would love to know how else it could be interpreted. >> mr. justice then asked his own questions in paragraph 86. his questions were directed to the obvious point. why wasn't this raised? here's him possibly blackmailing people, why didn't mr. miler raise that with him? the answer was not in the justice's view or the view of any objective read satisfactory, and what justice says at the bottom of page 33, this is effectively a non-answer from which it appears mr. miler did not consider there was anything
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at all objectionable to the approach of the women because he didn't query at any stage, and this remains to be a remarkable state of affairs. arguably quite a strong judicial criticism there. >> well, i mean, coming from a high court judge, i think that's impressive, but almost more impressive is that a few months later, they applied for the title of newspaper of the year based on their ground breaking year, we believe the impact of our experience and our way forward, and following the max mosley legal ruling helped define legal tabloid reporting in britain. the mosley conclusion itself, and they said what a good job
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was done, and i think that's completely sentimentsal because that's their entire attitude. >> in paragraph 87, the lordship has the cross-examination on this point, not going through it with you, but the upshot was at the end of the paragraph 87 that he didn't understand the point put to him in cross-examination or possibly pretended not to understand the point put to him. i'm not sure exactly which. >> yes, i believe his line was, "but i was giving them a choice." that's what blake mailers -- blackmailers always do. >> that's the facts we need, and to be absolutely clear, the judge makes a finding there was no nasty thieves.
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just before you leave that there is a point here because i go wac to the words that ring in my ears alls time, "culture, practice, and ethics," and mr. eddy said, i'm offering to pay them money, offer to pay them, not take anything from them, so i'm not blackmailing at all. 245 thought never crossed my mind. i'm offering the choice, and the judge goes on, and it seems he did not see the point, yet he's elementary that blackmail would be committed through threatings of something which would not in itself be unlawful, so the question that's obviously going to have to be asked quite apart from any questions about it is weather that state of mind was limited to one reporter or one newspaper or is actually the
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state of mind of others. >> it's precisely a line we have in mind and has been asked to deal -- >> yes, yes, but my point is that it's not just him because one can reach conclusions about an individual or find a dandy and don't go very far. the question is is this is pervasive perception, and if not, then i need to know it, and if it is, then equally. >> yeah. >> to his conclusion as a matter of law. you see whether we can chart a path through that and move to page 40 on the internal numbering in paragraph 110.
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he's dealing here with a public interest, and was there justification to deal with the intrusion, and he deals first with the point that i'm sure it was featured in the news of the world thinking, but whether there was underlying criminality, and he soundly objected that point. that's something we need go into, mr. mosley, and then paragraph 112 there's a nasty themed point. there's two aspects to this. the first is paragraph 123 where he finds there was not a nasty scene and therefore self-of self-evidently it would not classify as a national public interest, and in paragraph 122,
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he considers, well, if i had come to the conclusion there was a nasty scene, what then? maybe his conclusion was somewhat equivocal. he didn't have to decide the point. you may or may not have had a finding of fact, which he didn't. the third public interest issue, and this, i think is an important one, is under the heading depravity and adultery starting at paragraph 124. the argument in which mr. justice of addressing was whether there was a public interest in revealing immoral, depraveed or to an extent adulteress behavior.
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the lordship found that there was not. really as a matter of law, in particular paragraph 127. his analysis of the cases and case in the house of lords campbell was given there was the human rights in play here, mainly the right to privacy, and i quote, "it's not the journalists who undermind human rights or if the judge refuses to comport them, but on the grounds of moral disapproval. everyone is approved to beliefs to the effect that certain types of sexual behavior are wrong or demeaning to those participating. it does not mean they are entitled hound those who
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practice them or hurt those who live life the way they choose." the point he's making given that we're in the domain of privacy, the law does not concern itself with making a moral judgment of what concerns over the domain of privacy is my understanding of what the justice is saying. do you follow that? >> i do. i think that it's entirely reasonable because the problem is that if you could breach privacy merely because disapproved of what someone was doing or not to your taste, well, we would be all over the place because sexual behavior covers a huge variety of things, and when you start analyzing it, what i might like, somebody else might hate and vice versa, so where would it stop? the rational thing is to say provided its adults and provided itself in private and provided
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everybody consents, then it's nobody else's businesses. and justice, if i understood him rightly, was stating the law to be precisely that. in other words, it's the sort of john stuart mill attitude rather than the rather disapproving moralist attitude, and i think the law recognizes the john stuart mill that if you're not doing any harm to anybody, you should be allowed to do whatever you like, and that view is the modern view, but once upon a time, people felt completely able to pillar ri somebody because they disapproved or their tastes were different. we moved oven from that, and the idea it's tabloid journalists to pillary people is distasteful, and had that not disappeared,
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the gay community would be at risk, and i think he's absolutely right, and i think it's extraordinary that the tabloid press doesn't recognize that, and, of course, the truth of the fact is they do recognize it, but it doesn't suit them to admit that that is actually how thanks should be. >> thank you. i think one has to be careful to distinguish this position, which, of course you're quite entitled to give us, and we can agree or disagree with that, and that legal analysis, and mr. justice eddy may not share that view, but he was saying analyzing article viii of the convention, the concept of privacy means, and this is how the courts interpreted it, that you do not conduct a moral judgment of what is occurring in the domain of privacy. it is just off limits. you see that? >> i see that completely.
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it makes absolute sense. >> yes. i know of no case in strausberg or domestically that contradicts that part of the justice's reasoning. it is core to the inquiry. >> i think it is, and if i may say so, had he got that wrong, it would have been at the court of the appeals, and the fact it didn't go to the court of appeals, i think that strongly suggests that he got it right. >> well that's certainly a fair point since we know the case was not appealed. the only other point of principle that we gather from the judgment is, and this is paragraph 135 -- the point of who decides the public interest and the lordship makes it clear,
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and, again, this has to be right because it's the matter of the basic law that it's for the court to decide ultimately, if the cation come -- case comes to the court. >> yes, i think that must be right as well >> we'll accept this the court has to have regard in judgment in tastes of expression of concern. i'm merely just reading on. at the end of the day the nasty theme allegation having fallen to the ground and the immorality point being a point which couldn't be taken, there was no public interest justification to be played, and you won; is that right? >> yes. >> you were not successful in the obtaining exemplary
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damages. probably isn't necessary to explore why, but he made findings of fact, which meant that whatever the law was in the second head of exemplary damages law, you with respect able to obtain them in these circumstances? >> that's correct. >> in terms of damages the award was 60,000 pounds, which was -- perhaps still is the highest award of damages in the privacy case. do you know whether it still is? >> i believe it still is. >> awarded by a court. >> i think i'm right in saying, since my case, there's only one fought privacy trial, and it was
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lost, and of course, people don't for the reasons i explained earlier that you have to be eccentric or determined before you bring the purpose of the action because it's lose, lose, lose. >> well, we don't know how many settled. we don't know how many have settled. >> no. >> maybe you do. >> i don't know, no, but i think what happens is if somebody finds out therein as application for an -- there's an application for injunction which will usually be granted, that's the end of the case, and if there's an application of injunction that fails, then the information will be published, and that's the end of the matter so to speak, so i think somebody being awarded damages, i don't think -- certainly, none of the settlements i heard of, of course, the famous taylor and clifford settlements, but that's another matter, and there's
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reasons there, but i have not heard of large sums of money changing hands. >> mr. justice at the end of the judgment recognizes two obvious things. the first is, and it's always there, that no amount of damages can fully compensate you for the damage done. that would always apply whatever the context, and secondly, he says in relation to you, he is hardly exaggerating when he says that his life was ruined, and this is the genie out of the bottle point. >> it is because you work all your life to try and achieve something or do something useful, and i've got -- when this came up, i got to the age of 68, and i'd achieved things i was proud of, anyway, to do -- that had i been doing, and suddenly something like this happens, and that's what you are remembered for, and however long
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i live now, that is the number one thing that people think of when they hear my name, and, of course, it really matters, and sometimes if i could just make this point, it sometimes said, yes, but it's the same with personal injuries. if you have an injury, you lose your arm, the courts can do nothing. they can only compensate you financially, and, of course, that's true, but the difference in the fundamental difference is this that if you could go to a high court judge and say i'm about to have an accident, i'm going to lose my arm, will you please stop the accident because this is all you have to do, make an order, it's inconceivable that he'd refuse the order. the problem with accidents is every possible precaution is taken to stop them from happening, but in the end, they happen. whereas any revolution of privacy can be stopped by a judge. the only thing that's absolutely essential is that you should know that you can go to a
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judge. as soon as you know about it, it goes to an independent assessment where the judge weighs your right of privacy to somebody else's right to free speech or whatever, and he takes a decision, but if they ambush you ark and it's out there, no judge on earth can save you. that's really what it comes to. >> the testament was handed down. there was not an appeal. we know that as a matter of record. there was a public statement or prepared statement delivered by mr. miler on the steps outside here accusing the courts of introducing a privacy law by the back door, and that's paragraph 50 of your witness statement, but to be fair to mr. mielg e that's -- miler, that's his right, isn't it? to comment on the judgment. would you agree? >> i think he's got an absolute right to comment on the judgment. >> whether he should have commented without appealing may be for others to judge, but
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there was some fairly -- certainly bad taste, and i may be forgiven for describing it in that way, reporting -- well 52 of your judgments -- >> just a second. >> of your statement, pardon me. some newspapers couldn't resist the rather freedom craft. >> yes, this is sort of typical of the steady stream of that sort of thing coming from the gutter press, and, you know, i think one just has to put up with it. once it was out they were going to do this, but it's not just the sun. >> but, again, they have the right to comment and whether they do so in a high minded way or some different way is a matter for their hostile. >> indeed. i think it reflects more on them than on me. >> okay.
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well, actually, it's one o'clock. >> yeah, before we finish, you quoted, mr. mosley, from a document which you described as news of the world put themselves forward for or otherwise being put forward for an award. is that in the bundle of documents. >> i'm really sorry, sir, it's not, but i have a copy, and we can make copies of it. i forgot to put it in. >> no, that's fair enough, but i'd like to see it, and just so i make it clear why i want to see it because it goes back to whether this is one reporter or, indeed, one journal, but what is happening in the industry as a whole. >> as you will see, this makes it clear they were very proud of what they had done. >> all right. that's the point. well, i'd be grateful if you could make that available.
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thank you so much. two o'clock. [inaudible conversations] [inaudible conversations] >> i believe i was about to take you to paragraph 53 of your witness statement, please. you suggest they agreed to launch a campaign against mr. justice eddy. >> yes, that's correct. >> was that a joint campaign or a several campaign? >> it's my understanding it's joint in agreement. my understanding is they got together, but then decided the justice was to be attacked. >> yes.
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well, i am asked to put you this, and it's probably no surprise that associating this position is that whatever stance he took, and he was quite entitled to take it, it certainly was not fair in any collusion with ms. brooks. he did it of his own back. do you have any comment? >> i would not find that surprising, but i must say in general about these people, and by that, i mean, brooks as well, and in rebecca's case, she could deny for england because they denied the e-mail. they denied that they'd had more than one journalist involved in hacking. they denied it again until it became absolutely obvious and mr. edmondson was fired, and april of this year they admitted it could have happened between 2004. i could go on and on. >> fair enough.
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i get the picture. >> i get the picture of your view and you are entitled to your view as other people are entitled to your view, but the question is does the basis of your understanding have an evidential foundation? >> it does. i was told this by a senior -- former senior employee of news international. it would be wrong for me to announce the name because this is confidential, but i can write it down for you, sir. >> well -- >> if that would be helpful -- >> so you got it from a source, and you can't go any beyond it? >> correct. i'm very confident that i was told the truth. >> well, fair enough. >> before i deal with the very serious issue, paragraph 54, you refer to another piece in the
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daily mail which has a chilling title, and another example, though, of comments rightly or wrongly on a decision, isn't it? >> well, one could say that. i would say that this is calculated to intimidate the judge. if i put myself in the position of the justice, somebody's who a distinguished judge and jurorrists woo are not used to being attacked with public domain. i would find that offensive. i would find that worrying. if you think those sort of articles are going to appear, it must influence you to some degree. you must realize just the way the so-called celebrities realize that they are going to be attacked. it's highly unmrs. eddy cant, and i can't believe it's done for any other reason other than to intimidate. >> let me assure you,
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mr. mosley, that although went -- we don't hit the headlines real frequently, we are used to being criticized and saying nothing about t and that may require biting one's tongue, but we recognize that goes to the territory and does not alter what we do. >> i'm sure it has no esk, sir. >> i have to deal with impact, and it's a serious issue. i was touching on paragraph 57. appreciate a personal matter, but tell us in your own words about that, please. >> well, yes. my son was a drug addict, and he was one of these people -- extremely intelligent. had a mathematics ph.d., co-authored a paper on economics. he had written open source
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software. intelligent. like a lot of intelligent people, he suffered from depression, and his way of dealing with this, the only effective way he found was drugs, and he was getting to the age where he knew that if he didn't get off -- he made several attempt to get off the drugs, and if he didn't, this would end badly. he was struggling with it. he had overcome his problem, and the news of the world story had the most devastating effect on him. he really couldn't bear it. i mean, it was just so awful, and one can imagine that. it's bad for me, but for my son to see pictures of your father in that sort of situation all over the newspaper, all over the older, all your friends seeing it, also my wife, and he really couldn't bear it. he went back on the drugs, and it would be wrong to say he committed suicide. he didn't. that was clear from all the
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circumstance, but like many people on hard drugs, it's extremely dangerous, and you make a small mistake, and you will die, and that's what happened. >> that was in may of between? >> it was. >> and you deal with it -- some of the other effects of that in paragraph 58 that you went to your late son's house to sort out his personal things, and there was one journalist on the doorstep, and then frankly more arrived within a short bit of time. >> this is correct. what was to me, i don't want to sort of overdo it, but what, to me, was so horrifying is there was no sense of this matter or that he's a human being. these people actually -- it's a terrible situation to be in. it's a story so let's be there, and they had the photographers there, and i called my
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solicitor. he arrived on the scene, and gave them all a letter and they left because they knew very well -- they were called there -- obviously all on the mobile phone, but they were probably told that we have a rerun of -- i think it's called happenover versus germany. i would have -- i thought it was absolutely outrageous to take pictures of somebody this that sort of situation. it was a desperate situation. they have no human feeling at all. >> thank you. now, we've already touched on some of the other consequences of internet publication, and the next section of the witness statement deals with that in some detail. internet use in the united kingdom through the news of the world, and so you win your case, and then there's the effects
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throughout the world, really, with the worldwide web, and you've already told us you instructed, as you had to have done, firms of lawyers in 20 different jurisdictions in order to try to close this down. >> that's correct. we have not succeeded. all we can really do is mitigate, but we have reduced it. that must be said. >> you told us how much that's cost you? >> i dread doing it, but it's well over half a million pounds, well over, and it's ongoing. >> i'd like to deal with a related issue, namely, the economics of lit gages of -- litigation of the particular case, and paragraph 76 of your witness statement. >> yes.
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>> something any civil lawyer will understand immediately, but public at large would be forgiven for not understanding why if you went a case you're not left out of pocket, but you are left out of pocket because you get your 60,000 pounds damaged awarded by the justice. your legal costs are your obligation to pay your lawyers whatever they charge you, and that's a matter of contract between you and them. you get an order of assessment of costs from the judge which you had your case, and then another judge assesses the cost, and the end of that exercise all by agreement you ended up with a very good result, 80% of all your costs were paid by the losing party, news international. is that the fair summary of what happened? >> that's the exact summary because i think the difficulty is this that the -- you never accept -- you never get all your
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costs, and it's true of the lawyers, but you don't, and that means there's a difference from what the courts give you and what you have to pay. they have your damages, and in this case, they exceeded the damages. i mean, virtually any other case, they would exceed the damages. >> we actually learned about this yesterday because mr. louis was making the point in connection with the settlement of one of his actions that he received every single penny piece of his costs. that was the taylor investigation. >> yeah. that may or may not had one or two unusual features, but in your case with the good result, a short fall, and that's 30,000 pounds out of pooing, wasn't it? >> exactly, exactly. i think that mr. louis in the taylor case was astone ired at the level -- >> he made that point. he made that point.
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>> i'd like to come back to a point which i know you regard zings treemly -- recorded extremely important, prior to the notification, and 234 your own -- in your own words, give us the nutshell of the point you wish to impress on this inquiry please, mr. mosley. >> in a nutshell, the point is that in a privacy matter, once the information has been made public, it can never, ever be made private again; therefore, the only effective remedy is to stop it from becoming public, and what is needed is 5 mechanism to get -- is a mechanism to get it to stop it, and that is completely doen if you know it's about to be public, and the only gap in the law is if the newspaper managed
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to keep secret their intent to publish the information, and then out it comes, and it's too late, and there's nothing more to be done, and what follows from that is there should be prime notificationment one quick point on that is that in evidence, in 99 cases out of 100, the individual has noticed because the newspaper would normally approach something and ask them for comment. now, he may have been slightly exaggerating, but i can't believe he would not tell the truth. it's a minority of cases, but there's the very cases where the newspaper knows that if you did find out, you'd get an injunction, so they keep it secret knowing that they -- once they published it, no one in their right mind, say of that myself, no one in their right mind would sue because it costs you money, you get information
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published all over again, and you don't solve the problem because the information can't be made private again. it's the 1% that are really dangerous, but without prior notification, a newspaper, if they have information that's absolutely outrageous or outrageous pictures, if they can only publish them before the person finds out, there's no remedy unless one says well 30,000 pounds in repetition is remedy, but the repetition in court is only like suing -- because you have a broken leg, going to court, and then they break the other leg with absolute privilege as well because it just makes it worse, so, sorry, that was not much of a nutshell, but in a nutshell, it's the very case where there's an egregious breach of privacy. that are the ones where they don't tell you and where prior notification is essential. >> there's another argument that might serve as the board, and
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the prior notification, if a legal requirement, would lead to a rapid hearing before a judge, and the legal costs will be kept within reasonable bounds, and the second point is that you only get the injunction as a claim unless you show on balance your privacy has been violated, and there's no public interest justification. so, in practice call terms, if you win the prior notification injunction, you, in effect, will win the case, but the other way around, if you lose it, the newspaper will public with impunity, perhaps rightly, baa they know they're in the right. it's all self-contained in a more rapid, and cheaper process. do you agree or disagree with that? >> i agree completely. my information is to seek an up junction, the costs are something less than five-tenths of a full trial, and, of course,
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that also drives the newspaper, and if i may, as you say, under, i think it's section 12-3 of the act, you have got to show you're more likely than not to win the case, and you have to satisfy the judge that you're more likely than not. well, what can be wrong with that? if an independent judge thinks you're more likely or not to win, then you should have the injunction because if it's out, although you win the case, you win nothing because the information -- >> that answer's not only going to satisfy the inquiry, but although, privacy proceedings, half a million pounds to each side is really on the for the very wealthy, and proceedings, injunction proceedings, are for the wealthy involved, and prenotification does not deal, if i way say so, to the ordinary person with limited means. do you agree with that?
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>> completely, and i very much believe that what would be an alternative mechanism, and there should be some form of tribunal, some form of enhanced regulatory body. it's a big question, but to which you could go, and i think it's absolutely essential that such a body should be free of charge because otherwise you -- however cheap it is, even if you go to the county courts like the academics suggested, it's still beyond the means of a great many people. another reason it should be free, if i may say this, invasion of privacy is worse than burglarly because if somebody robs your house, you can replace the things that have been taken. you can repair the damage. if somebody breaches your privacy, you can never put it right again. it matters. with burglarlies, there's a burglar in your house, you call the police.
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they don't say, oh, are you rich? if you're not rich, we're not going to come. they come and arrest him, and there should be a similar mechanism to stop people breaching the privacy of an ordinary person not in the position to find the money to ask for injunction. >> to say it should be free of charge begs to question as to who is going to pay for it. >> well, indeed, sir, but the -- if you had a body that was similar to the press complaints commission, which is free, but independent, both of the press and the government and everybody else, and which made the essential decision often not talked about, the decision between making the rules and enforcing the rules, and the only -- at the moment, the rules, themself, are not bad. what is missing with the pcc is the ability to enforce them. now, if you had a body that could enforce the rules, it
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welcome -- you don't necessarily have to have super qualified people. i prefer to have anyone deciding whether my privacy should be breached or not -- >> the other argument is that it would smack censorship, wouldn't it? >> no more than the existing procedure. the only difference between that, sir, and the existing procedure is it would be available free of charge. people don't say -- i if had the knowledge and asked for injunction, i suppose news of the world might have said it was censorship, but i don't think any reasonable person would have. >> let me put another situation to you. forgive me if i take your example because it's actually allowing the point to be made and the justice was unsure whether he was satisfied with the underlying allegation, and
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whether that would have been in the public interest or not, and now what concerns me thinking through the point as i was reading your statement and mr. justice's judgment was how you're going to resolve issues. you will go along the to the judge and those who don't understand, these are comparatively short hearings saying my privacy's being infringed, and this is what they want to say about me, and it's outrageously untrue, and they will come along and said, oh, no, it isn't. it's absolutely true. then suddenly you have to have a trial because the balance of whether you grant injunction depends on whether it's -- whether you think the allegation is true or accurate. >> well, indeed, and, of course, that situation already exists,
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and as far as number one prior notification, and number two, a very inexpensive, free of charge tribunal is another issue, but on the issue you just raised, it will always be different. normal injunctions -- [inaudible] the lobby for the standard higher in privacy, but i think those very difficult questions are what judges are for and what they do, and what's dangerous is to allow the editor of the tabloid to weigh this up when really all he wants to do is sell newspapers, and in the particular case you mentioned probably what the justice would have done is say he can see no public interest in this. he did actually say that in the judgment -- >> yes, well, maybe i have to change your facts a little bit, but i want to get to a situation
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where there is a real argument about public interest which requires a proper invest -- investigation. >> well, then the judge should lean slightly, if i may put it like that, in article 12-3 because it's a little bit like the situation where i've got a tree at the bottom of my garden, and mr. jay says he's entitled to cut it down. well, the court would normally say, well, he may be right, mr. jay, but once you cut it down, you can't put it up again, so we'll leave it there pending trial, and what the judge would like to do in the difficult case is say this is a difficult case, it needs a trial. i'll grant injunction, but i'm giving an extra trial. >> all right. >> there's submissions of law on it, but it's fair to say in your case in paragraph 20 and 36, the
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judgment of the 9th of april of 2008, and if not for the bursting point, you would have got your injunction. that's my reading of it, and you don't have to comment to me or not, and it's a matter of -- but i've given you that assurance. what happens in the case where the public interest is more debatable, that could be dealt with by legal submission in due court. i would like, however, to dwell just very briefly on the reasons that the human rights chamber gave for rejecting were argument. now, in this very fat bundle, i'm going to go straight to the discussion or conclusion of the european court, page 410 on the small numbering. now, this document, of course, is in the public domain, and not
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going to ask for it to be -- [inaudible] for those who don't understand, in relation to prior notification, you took a case, and it went to the grand chamber. >> it went, sir, not to the -- to the small chamber. >> oh, the small chamber. >> i tried to go to the grand chamber. >> and they refused. >> that's it, yes. >> thank you. i'm going to summarize this as briefly as i can. at paragraph 120, they said that the general rule is that damages after the event will satisfy article viii. do you follow me? they considered paragraph 121
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notwithstanding that there's good reasons for requires prenotification as an add junket -- adjunct to article viii, and there's an appreciation argument that means in essence, well, the european court leaves it to the domestic court, wide margin as discretion as to how to organize the procedures, but then there is an interesting section of the judgment i drey to your -- i draw to your attention because it is perpetrated by others. page 412 at the bottom paragraph, paragraphs one through six. however, the court is persuaded that concerns regarding the effectiveness of the pre-notification duty and privacy are not unjustified. two considerations arise. first, it's generally accepted that any pre-notification
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obligation would require some form of public interest acception that the newspaper could not summon a subject if they could defend its decision on the basis of the public interest, and in order to prevent the chilling effects on freedom of expression, a reasonable belief there was a public interest at stake would have to be sufficient to justify no notification, even if subsequently held that no notification arose. can i suggest to those who write it that it's arguable at least that two matters are conflated. first, there's the public interest in not notifying you because you might be a criminal, you might destroy evidence or whatever, and then there's the public interest in justifying the publication in due course. what arguably the court had done here is use these arguments that pertain to the second
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consideration to the first, and therefore have entered into error, the same error which you would say, perhaps, infiltrates the reasoning of the select committee when they come to address the same issue. is that a fair summary of your position? >> that's a precise summary. the issue that matters is is the prior notification argument in relation to the notification itself, and when it gets to the subject matter, the judge will look at that. >> the other point which they make with great respect again -- [inaudible] they say well, if they were an injunction, the newspaper might break it because they're happy to pay the punitive fine, which seems to me to involve a bit of a misunderstanding of what the rule of law entails. if you got the injunction, you're in attempt of court and it would be unthinkable that a
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newspaper would ever take that risk. that could be the complete answer to the europern court's second reasoning. >> it might be an argument to find, but it's an argument saying it's okay to breach somebody's privacy. >> however, one republics the judgment. it is the law coming from the grand chamber were invited by you to reconsider, and they have not gone to give you the privilege to do so, the matter now rests with this decision. >> that is correct. >> that doesn't mean, of course, that you'd say domestic law could not move further than european law and provide you the protections which you say should apply namely by notification because it's within the gift of parliament to provide for that if so advised?
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>> i mean, the only reason that i went to strausberg is i thought there was no chance of convincing a u.k. government to bring in the necessary legislation because to put it bluntly, they were enthralled with mr. merdoch and other big newspapers, and any reason why a law should not be brought in, the case of prior notification to my rare thinking is unanswer baling. i think it's just so absolutely clear that it's the right way to do it. the only understanding issue is how you arrange the tribunal to do this without it being costly. that's the only issue, but you need prior notification, an independent person to decide in a difficult place whether it be published or not seems to be unanswerable. >> thank you.
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well, towards the end of your statement, you deal with the wider picture and the views and we're going to come to that, but there are some specific points i would like to raise with you. the first point in relation to to -- you are well aware that he has stated publicly that mr. justice's decision is incorrect. i think you referred in 2008 to the objective and relative view of mr. justice eddy, and then the select committee which we have available. he expects a similar view, and i don't interpret your evidence of saying other that he's quite entitled to express that opinion. >> i think that's fair.
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>> in a nutshell, what he may be saying, of course, you say it much better than me, and i should not be power phrasing here, but saying, look, this is immoral conduct. many people would judge it such. surely, therefore, there is a part of the newspaper's right of fair comment under article x or whatever for the matters to come to light because of the nature of the subject matter. now, i've expressed that in the way i'm sure he would not, but the general concept i sought to get across. may i have your comment on it, please? >> well, what was said, i think in the speech to the society in the editorial, he said that i was guilty of unimaginable depravity. well, first of all, it reflects badly on his imagination, but
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apart from that -- [laughter] it's not a simple comment because i wouldn't -- i had no idea what his sex life is. all i know is that he has this sort of preoccupation with schoolboys' smock in rise website and his ex in her bikini and ect., he may have a strange sex life, but the point is it's not up to me to go into his bedroom, film him, and then write about it. it's his business. if someone as an unusual sex life, the same thing applies. the law is clear, and i think it's quite right that it's private, it's adults, and it's consented, and then it concerns nobody else. the moment you go into an area where you say, well, i don't like that what person's doing, lots of people do things i don't
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like. it's not up to me to tell them not to. all i can object to is say please don't do it in front of me. please make sure everybody consents, and that's the end of the matter, and i think i said this before, and sorry to repeat myself, but it's a completely old-fashioned idea. it dates from the days, for example, when i was young, where it was illegal to be gay, and sort of sexual activities, which some people find normal, i don't, but others do, where it was criminal, and even between a man and a woman, and all that's been changed. the world -- the only person who did not move on is him. >> he said to the select committee, and he -- this is on the 23rd of april 2009, he said this, "with the greatest respect to you, the committee, i think a lot of us were very surprised at the soft time you gave him, and max to present himself as a
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knight in shining armor in his crusade to clean up the place is an insertion of normalized values in society, and it's like being the ripper campaigning against men who batter women." >> i mean it's really quite fair, actually, that he should say things like that to the committee because what he's merely saying is he doesn't like or didn't like something i did sexually in private with consenting adults, and the fact that he didn't like it should prevent me from saying the press should not invade people's privacy. it was an absolutely crazy argument and sad thing that every time i'm asked to debate,
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-- >> he crystallized the point later on. .. y their private lives with their partners. that's how they are. and the fact is we live in a
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civilized society where grownups should be able to do what they please. it's not up to him to decide who can do what between consenting adults. >> so the position is clear, the article certainly not an article would publish because of its nature. you probably recall that part of his evidence, do you? >> i do well. he is in a position, he is like the crocodile kills the animal and then the hyenas come along and scarf venge, and he is the scavenger. >> the agenda is a matter of human rights he is entitled to pursue and certainly not part of his objective he would say to
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undermine mr. -- what he is doing is exercising his democratic rights. would you accept that much? >> i can't really accept that. what he said was this is an amoral judgment. i think those are the words. it isn't. it's a judgment that recognizes that consenting adults are allowed to do by the law of this country what they wish in private. he may criticize the law. what he should not do is criticize a judge for imposing the law or applying the law. and what is hypocritical about the thing is that if this were not the law, they could appeal. and he should recognize the reason didn't appeal is because they knew they would lose. he is attacking the judge, playing the man rather than the
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ball. the ball is the law. if he doesn't like the law, he should change it. meanwhile, all the judge can do is apply it, and that's what he did. >> i think i have taken that point as far as i need to, mr. moseley. can i look now at the wider picture for your evidence? this is part of your witness statement. it starts at 100. first of all, you deal with the pct. what you say about the p.c.t. is not unfamiliar to the inquiry. you make the various point that no power to sanction.
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bcc working -- didn't present this most scandalous abuse, and you name them. you mention some positive aspects, paragraph 105-106. cue tell us a little bit about those matters and perhaps how they fell on you? >> absolutely. the complaints commissioned in my case were helpful when it came to trying to stop press harassment when -- after the death of my son. they did cooperate there. and i believe that i know from personal experience they have had some success in preventing the publication of stories that shouldn't be published. and they have done a lot in that right quite successfully. but the fundamental point is you don't know the stories coming
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out, you can't bring the pcc for help. that's why it's vital. >> thank you. and then you make the point, which is made -- and the conflict of interest point which, again -- i would ask you, please, to develop your point of suggested alternatives? i know you touched on this a little bit in your own words, mr. mosely. help the inquiry with your -- >> it is a subject i could talk about for hours, but briefly, i think a tribunal bit of some kind is needed, and the basic principle of the pcc is it is free, that is right. it is paid for by the press -- i
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think is right -- but i would give the new body -- make it slightly different. i would divide it into one sections. one which would make the rules and one which would enforce them. that would be great deal of work. fundamentally the rules are not that bad. what is needed is a body that can enforce them. so the body has the power to order a story not to come out if it were justified under the law, would have the power to fine. would have various powers like a judge would have, and i would add to that, the power to stop the press from harassing somebody. not ask them as the pcc does but tell them. but those points could be worked out and i would be very, very happy to submit to the inquiry a detailed proposal. but fundamentally you should be able to go very simply and say, i think my privacy is about to
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be invaded, and i would add to that, even defamatory statements. i know about the rule but i think there is a case of trying to mediate these things at the beginning. if somebody went with their complaint, either defamation or breach of privacy, and the other side were made to turn up as well and you have a mediator, a large portion of these would disappear before the started, and most case are quite simple. you have to have some mechanism for the complicated cases to to go to high court and have ways of paying for that. but the overwhelming majority of cases could be dealt with by a simple adjudicator, the two parties sitting there, the issues explained briefly no big, expensive lawyers and all the rest of it. most of these issues are really quite simple. it's just the capacity, the greatest respect to the legal
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profession. the capacity of the legal profession to make things complicated, of course, is great and that's very expensive. >> thank you, mr. mosely. journalistic practices now. paragraph 120. this is to some extent, if i can be forgiven for saying so, commentary, when it comes to operation motorman. do you understand, we're dealing with a lot of detail next week, and the inquiry will be able to reach its own conclusion about that. you make one night the context of blackmail, paragraph 124. i'm sure you would like to bring this stuff out. delivered judgment on 24th of july 2008. criticisms that dispelled that. you wrote to mr. rupert murdoch
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in new york, drawing it to his attention. did you receive a reply to that letter? >> no, i didn't. that letter was written on the 10th of march, and i sent it by the court of delivery, and i have evidence from the united states postal service it was delivered. i also sent two e-mails. and i was astonished because all i was asking him to do was to order an inquiry into this. i got no reply. and i have to say that i cannot imagine rising to a proper international company a letter alleging serious criminal conduct by a senior employee and get no reply. and i'm sorry to say this, but i think i will, if i may. that's conduct you suspect if --
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expect if you wrote a letter to a mafia leader about one of the soldiers. but if it was a serious offense, you would expect it from the ma mafia, not a large company like this. >> your legal team will remind me in due course to get the reply, which you have been seeking because it may be possible to do that. >> thank you. >> i hope you don't mind, mr. mosely, if i leave off operation motorman. no that's just my opinion.
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>> the internet is a big issue. you have touched on it. is there anything else? any practical solutions, any ideas you wish to share with us to deal with the proliferation of information literally at the speed of light globally? >> i think this is something that would probably require certainly national laws, but it would probably better require european laws and, in the end, an international convention. what i think can be done at quite an early stage, is to -- could be done would be to require the service providers and the search engines not to prolive -- prolive rate
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information that is illegal. i would be happy to put together a detailed proposal to submit to the inquiry. >> the second time you have offered to do something, mr. monday lee, -- monday -- monday lee, -- mosely, and at te end of the day i've not reached a conclusion as to what will work. but i might make an exception in your case for this reason, depending on what you say about this. you have experience of international governance in motor racing.
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so i don't know whether that gives you any additional underring of the potential pitfalls to be faced either in trying to do something nationally, let alone internationally. so, if you want to submit an event to the inquiry, then you can rest assured it will be considered, but you will equally understand i'm making absolutely no promises. >> i mean, what i submit may well turn out to be inadequate or no good for all sorts of ropes, -- reasons, but we have given at it great deal of thought, and it will be up to the inquiry whether it wants to adopt any or part of it. >> as long as the basis upon which you're doing this is an effort -- as long as the basis on which you're doing it is well
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understood. >> very happy to do that. >> final point, mr. mosely. the whole of your statement i think has already gone online. atpeople may have already read paragraph 131, which takes on "the daily mail." of course, you're entitled to your opinion in the context of operation motorman, you say in the middle of the paragraph, it's inconceivable "the daily mail" and others did not know they were encouraging a criminal act. that is strongly denied by them, and they will say, when they have the opportunity to do that, that the information commissioner's office in september 2001 -- 2011 -- pardon me -- that there was no evidence that any journalist asked mr.
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whittmarsh to obtain anything illegally. and to make clear that the rights and wrong of the issue are being investigated by the inquiry. so, let's wait and see what happens next week. are you content with that? >> may i say a word on that? i would just like to say that of course they would say that. i had hoped they won't consider this -- all i'm seeing is the fact that no journalists asked for an illegal act is note same as saying that no journalist would have realized that the information they were getting had to be illegally obtained. that's a matter for the inquiry. >> you're reaching your conclusions based upon your study of the -- of what price
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privacy. >> indeed. >> the inquiry is extremely grateful to you. have we covered all the ground you wish to? >> i think so. some of it twice. >> if that's the case, that would be my fault. so thank you very much, mr. mosely. >> thank you. thank you. >> it's probably sensible to have five minutes for the short-hand writer and for all of us, but i repeat, a 5:00 actually means 5:00, or perhaps in this case 7:00 but not longer. thank you.
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